How Cities and States are Sticking It to Citizens United

The Supreme Court may have declared in Citizens United v. the FEC that corporations have a First Amendment right to spend unlimited amounts of money to influence elections, but that doesn’t mean cities and states have to be happy about it.

They’re expressing their disagreement on an increasing number of battlegrounds, with Citizens United under challenge in courts, in city council meetings, in state legislatures, on ballots, and in the streets.

Dissension in the Courts

Some of the most interesting recent action has been in the courts, with lower courts—including a state Supreme Court and a federal appeals court—taking on Citizens United.

“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision." -Justice James C. Nelson

In Montana, the state Supreme Court upheld a longstanding law limiting corporate spending in politics. A lower court had held that Citizens United invalidated the Corrupt Practices Act, a law passed by citizens’ ballot initiative in 1912, when it was common practice for the copper industry to bribe state politicians. Unwilling to lose a basic, century-old protection against corruption, the state appealed the issue to the Montana Supreme Court, which on Dec. 30 allowed the law to stand.

For over 100 years, Montana has had an electoral system that preserves the integrity of the political process, encourages full participation, and safeguards against corruption,” said Attorney General Steve Bullock, who argued the state’s case. “The Supreme Court’s decision upholds that system and is truly a victory for all Montanans.”

The decision holds that Montana—for a host of reasons, from its history of corrupt industries to its thinly spread population—has a compelling interest in keeping the law. “If the statute has worked to preserve a degree of political and social autonomy, is the State required to throw away its protections?” asked Chief Justice Mike McGrath, writing for the majority.

Even Justice James C. Nelson, who dissented, did so regretfully. “While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision,” he wrote. “And, to be absolutely clear, I do not agree with it.”

The 2nd U.S. Circuit Court of Appeals took a similar stand when, in late December, it upheld a 2006 New York City law that, among other things, bans lobbyists from giving gifts to City officials and requires them to disclose all fundraising and consulting activities. A group of plaintiffs challenging the law hoped it would be invalidated under Citizens United; the court dismissed their lawsuit, upholding the City’s right to put limits on political contributions and prevent “pay-to-play” schemes.

Judge Guido Calabresi, in a concurring opinion, explained his reasoning for maintaining limits on corporate lobbying: “If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue.”

From Cities and States to the U.S. Constitution

Though lower courts can take stands against it, the Supreme Court’s ruling—that money is constitutionally protected free speech and that corporations are legal persons entitled to such protections—is final. If the Montana and New York City cases are appealed to the Supreme Court, the lower court rulings are likely to be reversed; Montana and New York City would quickly see the end of their hard-won protections.

Maine found a groundbreaking way to keep money out of politics—but can it last?

That’s why the New York City Council on Wednesday joined a group of other cities (including Los Angeles, Boulder, Albany, Oakland, and Madison) in asking Congress to pass a Constitutional amendment to overturn Citizens United. The resolution declares support for an amendment saying “that corporations are not entitled to the entirety of protections or ‘rights’ of natural persons, specifically so that the expenditure of corporate money to influence the electoral process is no longer a form of constitutionally protected speech.”

The same day, California lawmakers introduced a similar resolution in the state legislature.

It won’t be easy to stop big money from undermining our democracy. But momentum is building. The desire for a functioning democracy, writes Judge Calabresi in his concurring opinion for the 2nd Circuit, “is, I believe, something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know. But it will happen.”

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